Conners v. City of Lowell

• Decision Date: 19 May 1911
• Citation: 95 N.E. 412,209 Mass. 111
• Parties: CONNERS v. CITY OF LOWELL (two cases). WALSH v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 111

95 N.E. 412

CONNERS

v.CITY OF LOWELL (two cases).

WALSH

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1911.

Appeals from Superior Court, Middlesex County; Robert O. Harris, Judge.

Action by Dennis E. Conners, by Joseph Walsh, and by Edward F. Conners against the City of Lowell. There were judgments granting insufficient relief to plaintiffs, and they and the city appeal. Affirmed in part; reversed in part.

A. S. Howard, for plaintiffs.

Wm. W. Duncan, for defendant.

RUGG, J.

These are actions under St. 1909, c. 490, pt. 2, § 45 (formerly R. L. c. 13, § 44), to recover money paid for tax deeds which, it is claimed, by reason of error, omissions or informality in the sales, conveyed no title.

[1] 1. The form of tax deed used in several sales was that prescribed in St. 1901, c. 519. This form was in the law less than six months, having been repealed by R. L. c. 227, and supplanted by No. 14 of schedule of forms attached to R. L. c. 13, § 87.¹ The question is whether this form, employed since 1902, was ‘suitable’ under R. L. c. 13, § 87.² The fact that the Legislature permitted its use for a brief period, and then in substance restored important recitals which had existed in earlier statutes, does not necessarily make it a suitable form for any other time than that during which it was expressly authorized. The requirements of law as to a tax sale were the same both before and after 1901.

[2] A tax deed in order to be valid as a suitable instrument of conveyance, when not in the language of the statute, must set out either in precise phrase or by fair intendment to a reasonable certainty a statement of performance of all these acts which are essential to the existence of a legal cause for selling at the time when the sale was made. Although the terms of a tax deed need not show actual compliance to a technical nicety with the minute particulars of statutory requirements in making the sale itself, yet they must satisfy a reasonable mind without resort to extrinsic evidence that a valid cause of sale in fact existed.

[3] The collector of taxes has a naked power to sell real estate to pay the lien for taxes, and he must not only strictly conform to all the conditions precedent to the exercise of his power, but his deed must also contain all the recitals of substance which the statute imposes, both for the information of the purchaser and of the owner and of those claiming under each. Charland v. Home for Aged Women, 204 Mass. 563, 91 N. E. 146,134 Am. St. Rep. 696, and cases cited; Harrington v. Worcester, 6 Allen, 576;Langdon v. Stewart, 142 Mass. 576, 8 N. E. 605. Adherence to the somewhat strict rules which have been established as to tax deeds assumes a new importance in view of the sweeping provision of St. 1911, c. 370, to the effect that when duly recorded such a deed ‘shall be prima facie evidence of all facts essential to its validity.’ Compare St. 1901, c. 197; R. L. c. 13, § 43; St. 1902, c. 423. Several objections are made to the deeds based on their variation from said form No. 14.

[4] (a) The newspapers in which the notices of sale were printed were described by name as ‘Lowell Sun,’ ‘Lowell Daily Telegram’ and ‘L'Etoile’ without any further assertion as to the place of publication than that it was ‘in the county where said real estate lies.’ Although there is no statement in the deed of the city or town within which the real estate lies, it may fairly be inferred from the circumstance that the deed was headed ‘Commonwealth of Massachusetts,’ that the Lowell Sun and the Lowell Daily Telegram were published in Lowell in this commonwealth. Newspapers sometimes bear as a part of their title the name of a small country town, although not published there (Rose v. Fall River Sav. Bank, 165 Mass. 273, 43 N. E. 93;Brown v. Wentworth, 181 Mass. 49, 62 N. E. 984), but no one reading these deeds would have any reasonable doubt as to the fact that these newspapers were published in the city of Lowell. This is not true of the newspaper called L'Etoile. There is nothing about this name to indicate the place of its publication. Although the words of the statute reach only to ‘the name of the newspaper,’ yet in order to show the existence of a legal cause of sale the place of its publication as required by R. L. c. 13, § 1, must appear in the deed.

[5] (b) R. L. c. 13, § 40,³ provides that the notice of sale shall be posted ‘in some convenient and public place.’ The deeds recite such posting ‘in city hall, a public place in said Lowell.’ It is not every public place which would be ‘convenient’ for putting up notices of tax sales. City halls as matter of common knowledge are used generally for such purposes. Halls of this character exist in all municipalities, and the statement in a tax deed, that such a place is convenient for this use, affects no right of the person assessed or of the purchaser, and can add nothing to their knowledge. Under these circumstances failure to follow the prescribed form was not fatal. A quite different case would arise if the public place described was not one commonly known to be convenient for such purposes.

[6] (c) It was a condition precedent to the right of the tax collector to sell that the the advertisement should contain ‘the names of all owners known to the collector.’ R. L. c. 13, § 38.⁴ Omission of those names from the advertisement would deprive the collector of any cause for making the sale. All the statutory forms save that in St. 1901, c. 519, require such a statement. Without such a statement the deed in an essential particular, not fairly inferable from other parts of the instrument, fails to show the existence of a cause for sale.

[7] (d) The narration of the terms of the advertisement set out in the deed was that the sale would be for ‘nonpayment’ of taxes, while said form No. 14 was in the words that the sale would be for the ‘discharge and payment’ of the tax. The statement in the deed was supplemental as to cause, while that in the form indicates the purpose of the sale. It is plain from the deed that the only purpose of the sale was to satisfy the tax. In this regard no substantial error appears.

[8] (e) R. L. c. 13, § 38,⁴ requires that the published notice of the sale shall ‘contain a substantially accurate description of the several rights, lots or divisions of the land to be sold,’ while by section 41⁵ the collector must sell ‘the smallest undivided part of the land which will satisfy the taxes and necessaryintervening charges or the whole if no person offers to take an undivided part.’ The deed states that the advertisement was for the sale of ‘the smallest undivided part of said estate,’ sufficient to discharge the lien. The sale was of the whole and not any undivided part. The sale could not lawfully have been made of any larger estate than had been advertised. Hence in this particular the form of deed is defective in the statement of a cause for the sale of the whole. All sales in which this form was used were invalid.

It is not necessary to determine whether these deeds were also invalid in not containing enough to warrant a fair inference as to the municipality within which the land conveyed was situated.

[9] 2. Certain lands were properly assessed to the ‘heirs of George T. Woodward’ and to the ‘heirs of Irene E. Richardson,’ under R. L. c. 12, § 21. ⁶ In these instances the records of the probate court for the county, in which Lowell is located, showed, on the 1st of May of the year in which the taxes were assessed, who the heirs of Woodward and Richardson severally were and that one or more of the heirs of each resided in Lowell. The recitals in the deeds of this class were that demand was made upon ‘the heirs' of deceased. The collector is required to serve a demand for the payment of the tax upon every resident assessed, or in case of heirs of a deceased person, upon one of them, and to state in his deed ‘the name of the person on whom the demand * * * was made.’ R. L. c. 13, §§ 14 and 43.⁷ To say that a demand has been made upon the heirs of an intestate is not giving the name of the person upon whom the demand was made. The two sections cited impose upon the collector the duty of finding a resident heir, if there is one, making the demand upon him, and then naming him in the deed. To name a person is not the same as to describe him. The name of a person is the distinctive characterization in words by which he is known and distinguished from others. Such a designating appellation was not given by the words ‘heirs of’ a person. Tax deeds lacking it are invalid. Reed v. Crapo, 127 Mass. 39.

[10] Assessors are charged with notice of what may be found upon the probate records in determining whether to make an assessment to the heirs or devisees of one deceased. Tobin v. Gillespie, 152 Mass. 219, 25 N. E. 88. There is no hardship in holding the tax collector to the same investigation, if necessary, in ascertaining the name of an heir.

[11] 3. The advertisement of sale in several instances was printed in English in a newspaper printed in the French language. R. L. c. 13, § 1, ⁸ provides that ‘Publications, as applied to any notice, advertisement or other instrument, the publication of which is required by law, shall mean the act of printing it * * * in a newspaper published in the city or town, if any, otherwise in the county, where the land * * * is situated.’ English is the language of this country. This conception is fundamental in the administration of all public affairs. It is an elemental truth, so axiomatic in its nature as to need no supporting authority. It is not declared in the Constitution nor enacted by statute. It is so by the universal customs of our past in colony, province and commonwealth. Apart from the more obvious considerations, there are indications that the English language is that of our institutions in the requirement that no one can be a voter or eligible to office unless able...